City of Houston v. Cascades, Inc., A14-87-022-CV

• Decision Date: 02 April 1987
• Docket Number: No. A14-87-022-CV,A14-87-022-CV
• Citation: 730 S.W.2d 59
• Parties: The CITY OF HOUSTON and Lee P. Brown as Chief of Police of the City of Houston Police Department, Appellants, v. CASCADES, INC., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 59

730 S.W.2d 59

The CITY OF HOUSTON and Lee P. Brown as Chief of Police of

the City of Houston Police Department, Appellants, v. CASCADES, INC., Appellee.

No. A14-87-022-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

April 2, 1987.

Rehearing Denied April 30, 1987.

Laura S. Portwood, Houston, for appellants.

Robert J. Waska, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and ROBERTSON and CANNON, JJ.

OPINION

ROBERTSON, Justice.

This is an appeal from a temporary injunction order enjoining the enforcement of the City of Houston Ordinance regulating sexually oriented businesses "as it applies to permits for business enterprises." Appellant advances sixteen points of error attacking the action of the trial court. We hold the trial court was without jurisdiction to issue the injunction and reverse.

On March 5, 1986, the City Council of the City of Houston passed Ordinance No. 86-323 regulating sexually oriented businesses. While the ordinance is quite long and detailed, it is sufficient to note the following provisions: The ordinance requires owners or operators of sexually oriented businesses to obtain permits from the City of Houston in order to either commence or continue their operations. It regulates the location, signage and exterior painting of the buildings. It prohibits the issuance of a permit to a sexually oriented business which is located within 750 feet of any school or licensed day care center. All non-conforming enterprises existing on the date the ordinance became effective could remain in business, even if their permit application was denied, until November 30, 1986. The ordinance further provided that an owner of an existing non-conforming business could apply for, and be granted, an extension to operate after November 30, 1986, if he demonstrated that the extension was necessary for the recoupment of the investment in the business. Operation of a sexually oriented business without a permit was declared to be a class B misdemeanor.

It is undisputed that appellee's business is a sexually oriented business subject to regulation by the ordinance. In fact, appellee's petition alleged that it is engaged in the business of selling alcoholic beverages and "offers topless entertainment to its customers." Appellee's business opened to the public for the first time on July 31, 1986. Appellee stipulated that its place of business was within 750 feet of Chimney Rock Hall, which qualified as both a "school" and a "licensed day care center" as defined by the ordinance and that it "was not entitled to a permit under Ord. 86-323 at the time of its permit application due to the proximity of Chimney Rock Hall and is presently not entitled to a permit."

Contending that its business was eligible for an extension of the amortization period to recoup its investment, appellee applied for an extention to operate after November 30, 1986. In accordance with the ordinance, a hearing on the extension was held and the extension was denied. Appellee then filed suit in the district court.

In its petition appellee did not attack the ordinance on constitutional grounds, nor in the hearing before the court did appellee even suggest the ordinance was unconstitutional. Appellee sought to invoke the jurisdiction of the trial court to issue an injunction by alleging:

Your Plaintiff states to the Court there is an imminent harm and immediate emergency does exist and same is not merely an illusion of fear and apparition in this cause of action. Further, your Movant states that the pending injury of the loss of $1,889,470.96 is so threatening and real that it must be construed to reasonable [sic] justify the fears of your Movants. Your Plaintiff suggests to the Court that the foregoing loss of $1,889,470.96 should arouse the Court to do equity and grant temporary injunction pending a final judicial decision on the merits.

IX.

Stating further to the Court, generally the fact that a statute is invalid affords no ground for injunctive relief restraining officials acting pursuant to ...